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2016 DIGILAW 869 (GAU)

Biren Goyari v. State of Assam

2016-09-19

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Biren Gayari has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victim of the incident was Mohan Gayari, aged about 55 years. He was also younger brother of the appellant. 3. According to the prosecution case, on 10.8.2011, around 12 noon, the appellant went to the house of Mohan Goyari and committed his murder by causing multiple injuries with a dagger. The house of Mohan Goyari was near to the house of appellant in village Napara. At the time of incident, wife Chimni Goyari (PW-1) of Mohan Goyari was working in the paddy field. Their children were also not at home. After the incident, the public had caught hold of the appellant and kept him tied. The public even beat the appellant. Chimni Goyari on receiving information about the in-cident, rushed from the paddy field to her house and saw injured dead body of Mohan Goyari. She then went to the Police Station Gobardhana and made the ejahar exhibit 4. Thereupon, the Investigating Officer- Abu Bakkar Siddique (PW-12) seized the dagger from the spot. He also made the inquest report on the dead body in the presence of Sub-Divisional Officer (Civil), Salbari. Dr. Chakreswar Choudhury (PW-11) conducted the post mortem examination and found multiple penetrating and incised wounds on the dead body of Mohan Goyari. He opined that Mohan Goyari died due to multiple injuries caused to him and death was homicidal. 4. During trial, the appellant abjured his guilt and pleaded false implication. 5. The trial court essentially relying upon the evidence of Pranita Boro (PW-2) as well as extra judicial confession of appellant convicted and sentenced him as aforesaid. 6. After hearing the learned counsel for the appellant and learned Additional Public Prosecutor, we are of the considered view that the appeal deserves to be allowed. Pranita Boro (PW-2) is related to appellant and Mohan Goyari both. The prosecution examined her as an eye witness. But she did not support its case and turned hostile. She in her evidence categorically denied having seen the appellant killing Mohan Goyari as she was in School at the time of incident. Pranita Boro (PW-2) is related to appellant and Mohan Goyari both. The prosecution examined her as an eye witness. But she did not support its case and turned hostile. She in her evidence categorically denied having seen the appellant killing Mohan Goyari as she was in School at the time of incident. She also emphatically denied having made the statement during investigation to the police that she saw the appellant stabbing Mohan Gayari with a dagger. And yet the trial court held that Abu Bakkar Siddique had no reason to record the false statement of Pranita Boro that she saw the appellant stabbing Mohan Gayari and convicted him. Once Pranita Boro denied having seen the appellant stabbing Mohan Goyari and making any statement in this regard to the police, the trial court, in our considered opinion, committed gross illegality in relying upon her statement recorded under Section 161 of the Code of Criminal Procedure. 7. It is well settled that any confession made by an accused to the police is inadmissible. Surprisingly, the trial court relied upon the confession of the appellant made during interrogation by the Investigating Officer Abu Bakkar Siddique before the witnesses. Abu Bakkar Siddique has admitted in his evidence that appellant made a confession of his guilt during interrogation by him. Such a confession of appellant being inadmissible ought not to have been made the basis of his conviction by the trial court. 8. Lastly, the dagger alleged to have been used by the appellant was seized from the place of occurrence. But there is absolutely no material to show that it had blood stain. Other witnesses examined by the prosecution did not say that they saw the appellant either entering or coming out from the house of Mohan Goyari. They also did not say that they saw the appellant committing the crime. 9. For these reasons, we set aside the conviction and sentence of the appellant. The appellant is reportedly in jail. He be released forthwith, if not wanted in any other case. The appeal is allowed.